Aereo Lays Out New Survival Strategy in Letter to Judge

Aereo CEO Chet Kanojia

The company attempts to pay statutory license fees as a cable operator. The broadcasters respond that the new defense to copyright infringement is "astonishing."

The Supreme Court has handed down its big decision on the legality of Aereo, but that doesn't mean that the fussing is over. In fact, in a letter Wednesday to U.S. District Judge Alison Nathan, the upstart tech company hints at a new plan.

"Under the Second Circuit’s precedents, Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue in the preliminary injunction appeal," write its lawyers. "After the Supreme Court’s decision, Aereo is a cable system with respect to those transmissions."

And the implications of Aereo now wrapping itself in the cable system mantle?

"If Aereo is a 'cable system' as that term is defined in the Copyright Act, it is eligible for a statutory license, and its transmissions may not be enjoined (preliminarily or otherwise)," continues its lawyers.

Aereo reports that it is proceeding to file the necessary statements of account and royalty fees, and asserts that the Supreme Court's decision has overruled the 2nd Circuit decision in Ivi, which concerned a predecessor digital TV transmitter that once attempted to gain legitimacy through the paying of compulsory license fees.

Even if the judge doesn't accept the argument, Aereo says there are still issues to be addressed about the "scope" of any preliminary injunction. The company's lawyers write, "If the Court finds Section 111 inapplicable and determines that it should enter a preliminary injunction, that injunction must be limited to the conduct the Supreme Court carved out from Cablevision’s general rule: the simultaneous or near-simultaneous streaming of over-the-air television programs. The Supreme Court opinion did nothing to prohibit — and indeed reaffirms the vitality of — non-simultaneous playback from copies created by consumers."

The plaintiff broadcasters, of course, offer a different view, slamming "Aereo’s refusal to clearly specify whether, when and in what fashion it intends to continue operating."

They continue.

"Aereo never before pled (much less litigated) Section 111 as an affirmative defense. Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a 'cable system' under Section 111 given its prior statements to this Court and the Supreme Court."